Can a Sham Procedure Comply With the Acas Code? Employment Test Case

Responsible employers who follow full and fair procedures in line with the Acas Code generally have a powerful defence to unfair dismissal claims – but what if a procedure is found to be a total sham? The Employment Appeal Tribunal (EAT) considered that issue in an important test…

Jun 27, 2022

The case concerned a senior employee who was purportedly dismissed on grounds of redundancy. In upholding her subsequent unfair dismissal claim, an Employment Tribunal (ET) found that the redundancy procedure was a total sham. Its outcome was a foregone conclusion in that the decision to dismiss her had been taken long before. The ET went on to find that her employer had breached the Code and that her compensation should for that reason be uplifted by the maximum permissible 25 per cent.

In challenging the latter decision, the employer contended that the Code had no application to the case. It pointed out that the Code only applies to disciplinary or grievance situations and that its focus is on ensuring employer compliance with basic procedural requirements rather than substantive fairness.

Dismissing the appeal, however, the EAT found that the applicability of the Code is a matter of substance rather than form. It did not consider that an employer could sidestep application of the Code by dressing up a dismissal for misconduct or poor performance by pretending that it is for some other reason, such as redundancy.

If an employer seeks to employ a procedure that fully complies with the Acas Code, but makes such a mess of it that the dismissal is unfair, the EAT could see that it might not be appropriate to award an uplift. However, if an employer acts in bad faith and pretends to apply an appropriate procedure, the EAT could not see how that could amount to compliance with the Code.

On a fair reading of the ET’s decision, it must have concluded that the employer had taken against the employee and that its dissatisfaction with her should have been dealt with under a capability or disciplinary procedure. Given that her dismissal was predetermined and nothing she said could have made any difference, there was a complete failure to apply any of the protections provided for by the Code.

Social Worker’s Anxiety at Prospect of Attending Court Ruled a Disability

Activities that some people might find unconcerning can, for others, be a source of anxiety amounting to a full-blown disability. The Employment Appeal Tribunal (EAT) made that point in the case of a senior social worker who found the prospect of attending court hearings deeply disturbing. The woman, who dealt with many difficult matters involving children, had in the past attended a court hearing during which she was the subject of judicial criticism. She described the experience as traumatic.…

Adjusted Right to Work Checks Extended

The government has announced that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. The following temporary changes were made on 30 March 2020 and now remain in place until 5 April 2022: checks can currently be carried out over video callsjob applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originalsemployers should use the Home Office Employer Checking Service if a…

Employment Judge’s Interventions Gave Rise to Apparent Bias – EAT Ruling

Judges are entitled to robustly manage the cases that come before them, but what they cannot do is give even an impression that they are taking sides. In a case on point, an employment judge’s interventions during a hotly contested hearing were found to have crossed the line into apparent bias. Following a hearing, which was held via video link during the COVID-19 pandemic, the employment judge upheld an office administrator’s complaint of constructive unfair dismissal. The employer challenged…